The Increase of H-1B Denials Suggests a New Standard Of Proof

A recent report from the National Foundation for American Policy (NFAP) explores a dramatic rise in the denial of H-1B petitions. Because this increased denial rate comes without changes in the law or regulations, it may also serve as evidence that U.S. Citizenship and Immigration Services (USCIS) have unfairly adopted a new, higher standard of proof.

A number of employers have already filed lawsuits against USCIS, arguing that the government has effectively rewritten the rules without changes to the laws or regulations that would justify their actions. However, the lawsuits are unlikely to change their hiring situations anytime soon.

The statistics up close

The NFAP report tracked the denial rates for initial H-1B petitions for the years 2009 to 2019. From 2010 to 2015, the denial rate stayed below 8 percent, but it spiked in recent years:

2015 – 6 percent

2016 – 10 percent

2017 – 13 percent

2018 – 24 percent

2019 (first quarter) – 32 percent

The report cited the apparent influence of the 2017 “Buy American and Hire American” executive order and noted that denials for continuing H-1B petitions have also risen sharply. The denial rate for these petitions jumped from 3 percent in 2015 to 18 percent through the first quarter of 2019.

Regardless of whether these statistics suggest a new standard of proof, they undoubtedly reinforce the need to scrutinize your H-1B petition.

Employers need to pay attention

As the USCIS continues to deny H-1B petitions at an elevated rate, more employers may turn to immigration attorneys to help them avoid making the most common mistakes. Now, more than ever, it appears employers need to do better than just satisfy all the requirements of their visa petitions; they need to satisfy the requirements at the highest possible standard of proof.